Robert Chesney (Wake Forest University – School of Law) has posted Terrorism, Criminal Prosecution, and the Preventive Detention Debate (South Texas Law Review, 2009) on SSRN. Here is the abstract:
In
the aftermath of the 2008 election, change is in the air with respect
to counterterrorism law and policy. The Obama administration almost
certainly will terminate the military commission system, and it likely
will take steps at least to reduce reliance on the underlying practice
of long-term military detention. Against this backdrop, the debate
regarding how best to reform detention policy has sharpened. Some
contend that federal criminal prosecution should supply whatever
long-term detention capacity may be required, while others contend that
it would be better to design a detention system (such as a "national
security court") specifically tailored to the problem of terrorism
prevention.I do not propose to resolve this debate here.
Rather, my aim in this symposium article (also to appear as a chapter
in a forthcoming collected volume published by Brookings) is to enrich
the debate with a candid and precise assessment of the capacities and
limitations of the federal criminal justice system as it relates to
terrorism, with a particular focus on the prevention scenario.Part
I examines a variety of charges available to prosecutors in that
scenario. I conclude that these charges are far more
prevention-oriented than critics often admit, though I also note a
handful of limitations on their scope. Most significantly, perhaps, I
draw attention to limits on the extraterritorial scope of the two
"material support" laws as they stood prior to amendment in 2001 and
2004, respectively. That caveat aside, the scope of the charges
available to prosecutors today compares well to the grounds for
detention in the military detention system, and very favorably to the
charges available in the military commissions system.Part II
surveys several of the procedural and evidentiary considerations that
critics have cited as grounds to doubt the ability of the criminal
justice system to provide an adequate capacity to incapacitate
suspected terrorists. By and large, my analysis concurs with the
much-cited "white paper" that Richard Zabel and James Benjamin recently
produced for Human Rights First, which is to say that I agree with them
that many of the leading concerns in this area are overstated. I differ
from them to some extent, however, insofar as I emphasize three sets of
procedural safeguards that do tend to limit the reach of the criminal
justice system in comparison to existing or proposed alternatives. Each
is a familiar and much-lauded component of the fairness that
characterizes our criminal justice system, and none should be set aside
lightly. Specifically, I refer to (i) mandatory disclosure concepts
(e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay)
concerns (a topic which subtly imports the troubled question of
interrogation methods); and (iii) the burden of proof itself. These are
the features that do the most work in accounting for the difference in
reach among the criminal justice system and its competitors, and I
suggest that they should be the focus of the debate going forward.Because
no one seriously doubts that criminal prosecution will continue to be
an important tool of counter-terrorism policy going forward-whatever
becomes of military detention and proposals for alternative detention
systems-I conclude in Part III with a discussion of modest steps
Congress might take to optimize the criminal justice system for the
task of prevention-oriented prosecution. Criticisms and comments are
welcome at robert.chesney@wfu.edu.